Federal lawsuit filed to end EM law
By Zenobia Jeffries
The Michigan Citizen
DETROIT — “A local issue but a national struggle,” is how National Action Network president and MSNBC host Rev. Al Sharpton described Michiganders’ fight against the state’s emergency manager law, Public Act 436.
Sharpton joined Detroit, Flint and Pontiac residents March 28 at a press conference on the steps of the federal courthouse in downtown Detroit, to announce the filing of a federal lawsuit that claims the law is unconstitutional.
The suit filed in the evening of March 27 in the U.S. District Court for the Eastern District of Michigan asks the court for declatory and injunctive relief.
“There will be a threat to everyone in this nation, if the emergency manager law stands,” Sharpton said.
There are over 20 plaintiffs who represent various organizations, unions and public officials throughout the state, including Detroit, Benton Harbor, Flint and Pontiac — all of which are under emergency management.
Gov. Rick Snyder and State Treasurer Andy Dillon are listed as the defendants.
Gov. Snyder, who was in Detroit at the time of the press conference, says the state has had a “pretty good success rate” in the courts on the emergency manager issue.
“That’s part of democracy, that’s what the courts are for,” he said.
The governor appointed an emergency manager over the city of Detroit on March 14.
With the appointment of Detroit’s Emergency Manager Kevyn Orr, over 50 percent of the state’s African American population has been disenfranchised under emergency management. The cities of Detroit, Flint, Pontiac, Benton Harbor, Ecorse, Hamtramck and River Rouge — plus the Detroit, Highland Park and Muskegon Heights school districts — are all under emergency management. The predominately white city of Allen Park requested and received the appointment of an EM.
“The basis of the lawsuit (is that PA 436) is a violation … of the First Amendment … of equal protection under the law,” Herb Sanders, lead attorney for the plaintiffs, said at the press conference. “We’re asking for injunctive relief and that the law be declared unconstitutional.”
Never have we seen such depravation of democracy, Sanders said. “Minimally, their vote has been diluted.”
Sanders added that the many cities in the state are facing financial challenges “because of policies and practices of the state.”
“They’re making up circumstances to outsource and give contracts to their cronies,” he said.
Sanders also represented the group Stand Up For Democracy, which fought to put the referendum to repeal the emergency manager law, Public Act 4 (PA 4), on the ballot.
In the Nov. 6 election, 52 percent of Michigan voters and 87 percent of Detroit voters rejected PA 4. In less than 30 days, Gov. Rick Snyder and the Republican-controlled legislature enacted new EM legislation (PA 436) and made it exempt from repeal by the voters.
“I anticipate we will be given a hearing date, expeditiously,” Sanders told the Michigan Citizen. “It will be sooner than later. I’m confident it won’t take years.”
Sanders did not say when the legal team of 12 attorneys will file their brief.
The 51-page lawsuit claims PA 436 “effectively” establishes a new form of government in the state that allows Michigan cities and other forms of municipal corporations and local governments (e.g., school districts) to be ruled by one unelected official, who is vested with broad legislative power and whose orders, appointments, expenditures and other decisions are not reviewable by local voters.
The complaint also asks the court to stop all appointed emergency managers from exercising authority and to void all consent agreements.
The suit argues that PA 436 violates the plaintiffs’ following Constitutional Rights:
- Due process right to engage in collective bargaining.
- Due process right to an elected, republican form of government;
- A right to freedom of speech.
- A right to petition local government.
- A right to equal protection of laws granting Michigan citizens the right to vote in local elections and to remove emergency managers.
Wayne State law professor Robert Sedler says the suit “certainly has plausibility.”
In a phone interview, Sedler told the Michigan Citizen that while given local units of government are creatures of the states — “states can regulate and appoint managers” — at the same time, the Home Rule legislation gives cities power.
That an EM “potentially” takes away that power “raises concerns,” Sedler said.
Sedler says the court will look at two things: Whether the state’s interest (in appointing an emergency manager) justifies interference with self-governance and whether the state had to intervene, considering the state was in a contract with the city (the Consent Agreement).
“It’s plausible,” says Sedler. “One can’t say whether it will prevail.”
Secondly, he says, so far the EM has not issued any orders that interfere with self-governance.
“He’s kept the council and mayor,” Sedler said, referring to Orr’s first order to restore the salaries of Detroit’s elected city officials.
“The (federal court) doesn’t like to say a law is unconstitutional on its face; it likes to say it is unconstitutional on how it is applied.”
Other plaintiff attorneys listed on the suit are Sugar Law Center for Economic & Social Justice; Goodman & Hurwitz PC; Miller Cohen PLC; Center for Constitutional Rights; Constitutional Litigation Associates PC and Litigation Associates PLLC.
The case has been assigned to Judge George Steeh.
Visit www.michigancitizen.com to see the lawsuit.
Contact Zenobia Jeffries at email@example.com